MAGISTRATE UPHELD

Sun (Auckland), Volume IV, Issue 1075, 12 September 1930, Page 13

MAGISTRATE UPHELD

REFUSAL OF REHEARING OF WOMAN’S CASE CERTIORARI WRIT REFUSED | The decision of Mr. F. K. Hunt, S.M., j in refusing to grant a rehearing to a woman who had been sentenced to I three months’ imprisonment qu a t charge of habitually consorting with j undesirables was upheld by Mr. Jus- | tice Herdman in the Supreme Court ! today. Violet Cousins, described as a domestic, Sought the issue of a writ o[ certiorari to set aside the magistrate’s refusal on August 25 to grant an application for a rehearing of the case on August 11, when she had been convicted of being an idle and disorderly person, in that she habitually consorted with reputed thieves and undesirable women. The grounds of the motion were that the magistrate did not hear -he application for rehearing; that he had pre-determined the application before it came on for hearing; that he did not exercise his discretion in a judicial manner, and took into consideration ' matters that were not only irrelevant, but were arbitrary, vague, fauciful and contrary to the principles of justice. Supporting the motion, Mr. Sullivan i said that the woman was arrested on j August 0, and at the time she asked j the police to communicate with some j friends. Counsel was not aware ; whether this was done, but at any rate the woman was sentenced on August 11 to three months for consorting with undesirables. When the application for rehearing was mentioned in Court on August 23, the magistrate adjourned it until the following Monday, announcing he would obtain a report from the probation officer. On the Monday, Mr. Hunt stated that he had conferred with the probation officer, and he knew that case, that the ; woman had 40 previous convictions, i and he refused the application. Coun- ! sel had protested, but the magistrate had peremptorily declined the applicaI tion. Mr. Sullivan contended that the | magistrate, instead of deciding himself whether the application had any merit, had conferred with an outside party who had no legal right to decide any point. He asked permission to call a newspaper reporter to give oral evidence that the magistrate had announced his intention of conferring with the probation officer. His Honour: It is not the usual thing. i Mr. Meredith, who opposed the moj tion, also remonstrated at the proposal jto tender oral evidence. He claimed j the issue was simple, as the magisi trate had stated that he had considi ered the affidavit and had arrived at his decision. His Honour pointed out that counsel was going to attempt to prove that the woman could not have been consorting because she was employed as a housekeeper. Mr. Sullivan claimed that the magis- ; trate had exercised his discretion in an extraordinary way in this case. “There seems to be abundant evidence that the woman deserved all she got in this case,” remarked the judge. "JUSTICE NOT DONE” Mr. Sullivan complained that the i magistrate had delegated his powers ! to the probation officer in deciding the ! fate of the rehearing application.

“Justice lias not been done in this case.” he said. “It was done by the probation officer and not the magistrate.” After further argument, his Honour, with Mr. Meredith’s consent, agreed to accept oral evidence concerning the magistrate’s statements when the application for rehearing came before him. This testimony was given by William E. Crawford, a reporter, SeniorSergeant Powell and Sub-Inspector Shanahan, on the lines suggested by counsel. Under cross-examination, SeniorSergeant Powell said that the magistrate had told Mr. Sullivan at the hearing the effect of the charge. Mr. Meredith asserted that Mr. Sullivan had helped himself to all sorts of inferences which were flatly contradicted. and were ridiculous on their face. There was a mass of police evidence to show that the woman had been consorting with undesirables. The suggestion by Mr. Sullivan that evidence could have been adduced to show that the woman had been employed as a housekeeper at the time she was convicted would not have any bearing on her conviction, and counsel must have known that ary application for rehearing on this basis must inevitably have failed. The magistrate had also taken the trouble to point out to Mr. Sullivan the difference between the idle and disorderly and consorting charges. In fact, Mr. Hunt had treated the application with more courtesy than it deserved. "GRAVE REFLECTION” Counsel commented that Mr. Sullivan made a grave reflection on the magistrate in suggesting that Mr. Hunt was influenced in his decision by the probation officer. This brought a protest from Mr. Sullivan that he had not made reflections on anyone. Mr. Meredith concluded by contending that no court would have exercised its discretion in any way other than the magistrate had done. After reviewing the arguments and affidavits, his Honour said he must determine the case largely on Mr. Hunt’s affidavit. He considered that in view of the fact that the woman was convicted for consorting, any evidence to the effect that she had been employed at the time would have been irrelevant, and would be no defence or answer to this charge. The foundation of the application disclosed no evidence that would justify-the granting of a rehearing, and he was not prepared to hold that the magistrate had not acted properly. The motion was dismissed with costs, £5 ss.